Wednesday, October 28, 2009

You can't believe everything you read on the internet

Yesterday, I read a report claiming that at a public event in Arizona, Justice Scalia had declared he would have dissented from the unanimous ruling in Brown v. Board of Education.  I'm fairly certain that my head exploded when I read that.  How could that be?  How could any rational jurist think that Brown, which declared segregation in the public schools to be unconstitutional, was wrong?

This alleged statement by Scalia was part of a larger complaint about other justices with very different ideas of constitutional interpretation who, in Scalia's mind, "invent" rights.  Was Scalia suggesting that individuals in this country did not have a right under the 14th Amendment not to be segregated by race?  Because that would be an outrageous proposition.  And if he did say that, boy, would I have something to rant about on this blog.  But it also didn't sound quite right, knowing what I know of Scalia's fairly bizarre style of constitutional interpretation.  As a self-proclaimed "originalist", he would have looked to the history of that amendment's passing and most likely would have concluded that the amendment was understood by its passers to address racial inequalities. 

So, I checked it out before writing this blog post.  And, sure enough, that's not what he said.  He said he would have joined Justice Harlan in dissenting in the earlier case Plessy v. Ferguson, the case Brown overruled.  In that earlier case, the majority of the court came up with that famous line of bs, "Separate but equal."  Scalia is clear in his opinion that the 14th Amendment's equal protection clause is all about racial equality and, as such, Plessy was dead wrong.  Phew, he's not such a bad justice.  And that's why I always check into things before I go off on rants.  Because you really can't believe everything you read.

Scalia is all about the equal protection clause protecting racial equality.  He just thinks the Court shouldn't go around "inventing rights" by extending the equal protection clause to include other groups like gays and women.  Because same-sex marriage and equal pay for equal work weren't in the minds of those guys who passed the 14th Amendment over 100 years ago.  The reasonable person living in 1868 wouldn't have thought the phrase "equal protection under the law" meant that women should be treated equally with men.  Hell, women didn't even have the right to vote yet.  In many states, women couldn't enter into contracts on their own or even own their own property.  (They always could in Kansas because, once upon a time, Kansas was a really progressive place.  Sigh.)  So, clearly, the equal protection clause can't apply to equality between the sexes.  And I would guess he could make a pretty good case that the reasonable person in 1868 sure didn't think gays should be treated as equals to straight folks.

Well, he may not think that women have a right to equal pay for equal work, but at least he would probably say that a black woman and a white woman employed by the government to do the exact same work should be equally underpaid.  Because that racial equality might be within the "original meaning" of the 14th Amendment.


Jeff Gamso said...

Perhaps Scalia would have joined Harlan in dissent in Plessy, though I doubt it. But I don't for a minute think that he would have joined the Court in Brown. Look at it from the point of view of an originalist (which he claims to be except when stare decisis is too important to allow adherence to the Constitution to apply - which is why he says Thomas is "nuts," by the way, because Clarence T will vote against anything he thinks is wrong, regardless).

There may be every reason to believe that the framers of the 14th Amendment's Equal Protection Clause thought they were ending discrimination. But they certainly weren't declaring segregation wrong, and absolutely were not demanding that schools be integrated. The only way you get there is by assuming that they were saying, by the amendment: "Equality as it may be understood in the future." And that's exactly the sort of approach to the Constitution Scalia rejects out of hand.

S said...

The clip on the Huffington Post is an interesting little dance. He does clearly say he would have dissented in Plessy, so what the heck, I'll give him that benefit of the doubt. He doesn't explicitly say he would have been in the majority on Brown. But, yes, I agree with you that if he truly put his originalism to the test, without Brown having been good law for 55 years, he might very well have concluded that separate but equal was equal enough based what the people in 1868 would have thought "equal protection" meant.

Which is why I think his particular brand of originalism is so very, very screwy. (And contrary to what Madison and Jefferson et al had in mind.) He would argue that even if we now recognize a clear, gross, obvious to all of us inequality, the fact that the people who wrote the plain language 139 years ago did not recognize that as an inequality, we're stuck saying that inequality is constitutionally ok.

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